Opinion
NOT TO BE PUBLISHED
San Luis Obispo Count Super. Ct. No. F437891, Barry T. LaBarbera, Judge.
Susan B. Gans-Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Gary Kenneth Birchard was convicted by jury of driving under the influence of drugs and alcohol. (Veh. Code, § 23152, subd. (a).) He had been convicted of felony drunk driving in 2006 (id., § 23550.5, subd. (a)(2)), which elevated the instant offense to a felony. Appellant admitted as true the allegations that he had served three prior prison terms. (Pen. Code, § 667.5, subd. (b).) He was sentenced to an aggregate term of four years in state prison, consisting of the midterm of two years, plus two years for the prior prison term enhancements. The court stayed the third prior prison term enhancement.
A person commits a felony when that person is convicted of driving under the influence of drugs or alcohol and, has a prior felony conviction for driving under the influence of drugs or alcohol which occurred within the last 10 years. (Id., §§ 23152, 23550.5, subd. (a)(2).) Appellant had been convicted of felony drunk driving in 2006 (id., § 23152), which elevated the instant offense to a felony. (Id., § 23550.5, subd. (a)(2).)
All further statutory references are to the Penal Code unless otherwise stated.
Appellant was ordered to pay a restitution fine of $800. (§ 1202.4) A parole revocation fine in the same amount was imposed and stayed. (§ 1202.45) The court did not impose a mandatory court security fee (§ 1465.8) or court facilities assessment (Gov. Code, § 70373). We affirm with directions to amend the abstract of judgment to reflect imposition of the required fee and assessment.
FACTS
At approximately 10:30 a.m. on September 20, 2009, California Highway Patrol (CHP) officer Jonathan Carr had completed a traffic stop near a gas station. He saw appellant drive into the gas station and park his vehicle behind a truck. Appellant was seated in his truck, drinking something from a brown paper bag. Carr asked him for the bag, which contained a cold beer. He had consumed little of the beverage and said he had just bought it.
Carr asked appellant to get out of the truck. He said that he had slept only two hours the night before when he drank a six-pack of beer and had taken medication. Appellant's speech was slow and slurred and he was unsteady on his feet. He had some physical impairments, which included an injured back and left leg. Carr conducted a series of field sobriety tests which demonstrated impairment. A preliminary alcohol screening test revealed a blood alcohol level of.057 percent and a second test showed a blood alcohol level of.06 percent.
A video was played for the jury which showed appellant's truck entering the gas station, causing another truck to slow for him. Appellant walked inside the gas station, purchased a drink and returned to his car. Another video admitted into evidence showed appellant undergoing field sobriety tests.
Appellant told Carr that, on the previous night, he had taken 10 milligrams of a drug called Endocet and a medication called Soma. Carr concluded it was unsafe for appellant to drive, and his ability was impaired by the combination of drugs and alcohol. Carr believed that appellant's objective signs of intoxication were much greater than indicated by the alcohol screening device. Appellant was arrested. Carr took him to a CHP station where a drug recognition evaluation was performed, then to a hospital to have a blood sample drawn.
CHP Officer Jose Vega calibrates preliminary alcohol screening devices for use by the CHP. He testified that the device was operating accurately four days before it was used on appellant, and was accurate two days afterward.
CHP Officer Jason Butler had performed the drug recognition test at the CHP station approximately one hour after appellant's arrest. Appellant displayed objective signs of intoxication. He told Butler that he had taken Norco, a prescribed narcotic analgesic, and Soma, for muscle spasms. Appellant said he had taken these drugs at 3:00 a.m. the previous morning, and had consumed one beer. He acknowledged that he should not have combined prescription drugs with alcohol, and told Butler he believed that he was an alcoholic.
A forensic toxicologist tested two samples of appellant's blood for alcohol. The tests showed a blood alcohol level of.014 and.013. Three hours earlier appellant would likely have had a blood alcohol level of.06. Another toxicologist tested appellant's blood for the presence of drugs. The testing revealed the presence of the drugs Soma and Vicodin. The level of Soma in appellant's blood would have been "at least double" at the time he was driving. The level of Vicodin would have been somewhat less. The combination of drugs and alcohol would have significantly impaired appellant's ability to drive.
DISCUSSION
Sufficiency of the Evidence
Appellant argues that the evidence was insufficient to support his conviction for driving under the combined influence of drugs and alcohol. He claims he was not so impaired that he was unable to drive. Appellant contends the jury's verdict was based upon speculation because (1) the level of alcohol in his blood was below the level of legal intoxication; (2) the prosecution and defense experts agreed that the amount of Vicodin in his system had no effect on him; and (3) no witness testified that appellant was seen driving abnormally, or "staggering about in a drunken manner." Moreover, the attendant who sold appellant beer at the gas station testified that he did not appear intoxicated. Any slurred speech or unsteadiness on his feet was the result of lack of sleep and his back and leg injuries.
When assessing a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27.) We presume all facts in support of the judgment that the jury reasonably could deduce from the evidence, and do not reweigh the evidence, or evaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) A judgment will be reversed only if there is no substantial evidence to support the verdict under any hypothesis. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The first CHP officer contacted appellant as he was drinking a beer at 10:30 in the morning. Appellant admitted that he was sleep deprived, and several hours earlier, had consumed a six-pack of beer and two types of prescription medication. A field sobriety test reflected that he was impaired. A preliminary alcohol screening test revealed a blood alcohol level of.057 percent and a second test showed a blood alcohol level of.06 percent. Another officer who performed a drug evaluation test concluded that appellant was intoxicated. Appellant acknowledged that he should not have combined prescription drugs with alcohol, and said he believed that he was an alcoholic. Samples of his blood showed elevated blood alcohol levels and the presence of the drugs Soma and Vicodin. There was expert testimony that the combined substances would have impaired appellant's ability to drive. The jury's verdict was supported by substantial evidence.
Jury Question
On the first day of deliberations, the jury sent the trial court a note, saying that it could not agree if appellant was impaired so that he could not drive a vehicle with the caution of a sober person. The court directed the jury to refer to the jury instructions and evidence to make its determination. It also informed the jury it could view the surveillance video again, or could return on the following Monday to begin again.
A short time later, the jury returned a verdict of guilt. Appellant seems to imply that this sequence of events showed a lack of deliberation. We disagree. The jury carefully considered the evidence, as demonstrated by its note to the judge that it could not agree on the level of impairment. At the court's direction, it returned to deliberations to review the jury instructions and reconsider the evidence. "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions. [Citations.]" (People v. Scott (1988) 200 Cal.App.3d 1090, 1095.)
Imposition of Court Security Fees
At sentencing, the trial court did not impose a mandatory court security fee pursuant to section 1465.8, nor did it impose a mandatory court facilities assessment pursuant to Government Code section 70373. We therefore direct the trial court to amend the abstract of judgment.
DISPOSITION
The trial court is directed to amend the abstract of judgment to impose the mandatory fee pursuant to section 1465.8 and assessment pursuant to Government Code 70373, and forward the amended abstract to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: GILBERT, P.J., PERREN, J.